Friday, January 23, 2009

At least 200 passengers have been convicted of felonies under the Patriot Act, often for behavior involving raised voices and profanity. Some experts say airlines are misusing the law. Only three GOP Congressmen voted against the Patriot Act. Only 18 GOP Congressmen voted against its renewal in 2005.

By Ralph Vartabedian and Peter Pae January 20, 2009

Reporting from Los Angeles and Oklahoma City -- Tamera Jo Freeman was on a Frontier Airlines flight to Denver in 2007 when her two children began to quarrel over the window shade and then spilled a Bloody Mary into her lap.

She spanked each of them on the thigh with three swats. It was a small incident, but one that in the heightened anxiety after the Sept. 11 terrorist attacks would eventually have enormous ramifications for Freeman and her children.

A flight attendant confronted Freeman, who responded by hurling a few profanities and throwing what remained of a can of tomato juice on the floor.

The incident aboard the Frontier flight ultimately led to Freeman's arrest and conviction for a federal felony defined as an act of terrorism under the Patriot Act, the controversial federal law enacted after the 2001 attacks in New York and Washington.

"I had no idea I was breaking the law," said Freeman, 40, who spent three months in jail before pleading guilty.

Freeman is one of at least 200 people on flights who have been convicted under the amended law. In most of the cases, there was no evidence that the passengers had attempted to hijack the airplane or physically attack any of the flight crew. Many have simply involved raised voices, foul language and drunken behavior.

Some security experts say the use of the law by airlines and their employees has run amok, criminalizing incidents that did not start out as a threat to public safety, much less an act of terrorism.

In one case, a couple was arrested after an argument with a flight attendant, who claimed the couple was engaged in "overt sexual activity" -- an FBI affidavit said the two were "embracing, kissing and acting in a manner that made other passengers uncomfortable."

"We have gone completely berserk on this issue," said Charles Slepian, a New York security consultant. "These are not threats to national security or threats to aircraft, but we use that as an excuse."

Justice Department spokesman Dean Boyd defended the prosecutions, saying that they have helped improve airline security. He added that the department has only pursued prosecution "when the facts and circumstances of a particular case warrant such action."

Indeed, the law has given airlines new flexibility to clamp down on unruly behavior. But the intent of the Patriot Act provisions was to put terrorists in violation of the law before they could execute an actual takeover, said Nathan Sales, a law professor at George Mason University who helped write the Patriot Act when he served in the Justice Department.

But Sales acknowledged that in the fervor to protect the skies, the practical application of the law has strayed.

"A woman spanking her child is not as great a threat to aviation as members of Al Qaeda with box cutters. That much is clear," he said.

For decades, airline personnel and law enforcement have had wide latitude in prosecuting unruly passengers, not only for assaults or threats but also for any behavior, including arguing, that disrupts a flight or "lessens the ability" of crew members to perform their jobs.

In practice, however, airlines have largely maintained order under Federal Aviation Administration rules, in which hundreds of unruly passengers are simply slapped with an infraction and fine each year.

According to FAA guidelines issued in 2007, "interference or intimidation of a crew member by itself is not chargeable under the [criminal] statute unless it rises to the level of physical assault, threatened physical assault or an act posing an imminent threat to the safety of the aircraft or other individuals on the aircraft."

Sept. 11, however, changed everything. Within two months of the attacks, Congress passed the Patriot Act, a sweeping attempt to improve the nation's defenses against international terrorism. It included broad new powers for law enforcement in such areas as electronic surveillance, money laundering and search warrants.

Included were two key provisions on airline security. The first defined disruptive behavior as a terrorist act, reflecting the seismic shift in airline security.

The second broadened the existing criminal law so that any attempt or conspiracy to interfere with a flight crew became a felony -- a change that allowed flight personnel to act against suspicious passengers even if they hadn't begun an actual assault.

The law gave flight personnel enormous latitude in determining what precisely posed a potential threat or disruption, and judging by some cases, there is no clear standard.

Last summer, a Boston man who took off his clothes and attempted to open an emergency exit during a flight to Los Angeles was not charged with a crime, even though the plane was forced to make an unscheduled landing in Oklahoma City.

Such was not the case with Carl Persing and Dawn Sewell, a Lakewood couple who never left their seats during the 2006 incident aboard a Southwest flight to Raleigh, N.C., that led to their arrests and four days in jail.

FBI and local investigators in Raleigh alleged that the couple engaged in a variety of sexual activities during the flight. At one point, according to an FBI affidavit, Persing was "observed with his face pressed against Sewell's vaginal area. During these actions, Sewell was observed smiling."

A flight attendant twice asked them to stop, according to the affidavit, and Persing responded, "Get out of my face," and later, "You and I are going to have a serious confrontation when we get off this plane."

But he denied making a threat. He said he did not feel well because of a chemotherapy drug and had put his head in Sewell's lap. "We were kind of confused why he was waking us up, why he wouldn't let me sleep," he said in a recent interview.

Charges were dropped against Sewell, but Persing, who had never been arrested before, was sentenced to 12 months' probation.

He almost lost his job as a Port of Los Angeles mechanic, which requires a security clearance from the Department of Homeland Security. The department initially yanked the clearance but reinstated it after a review of the facts.

The Justice Department does not keep data on how many such prosecutions or convictions have occurred, Boyd said. But according to the Transactional Records Access Clearinghouse, a Syracuse University program, the federal government has obtained 208 felony convictions for disrupting flights since 2003, when data first became available.

The single case of actual terrorism cited by Boyd involved Briton Richard Reid, who is serving three life sentences. Reid was subdued by passengers and flight attendants on a 2001 flight from Paris to Miami after he was seen trying to ignite explosives in his shoe.

Tension aboard planes has increased over the years as the number of flight attendants onboard has declined and flights have grown more crowded.

Airlines, in most cases, have provided no additional training for flight attendants to deal with unruly passengers or potentially threatening situations, said Corey Caldwell, spokeswoman for the Assn. of Flight Attendants. The amount of training attendants receive -- averaging six weeks -- has not changed since Sept. 11.

Tolerance for irrational behavior linked to mental illness has also diminished, said Ronald Honberg, legal director for the National Alliance on Mental Illness.

In a number of cases, mentally ill passengers act bizarre, falsely claiming to have heart attacks, seeing terrorists or needing to escape the plane. In other cases, including one earlier this month in Los Angeles, they use the word "bomb" or claim to have a bomb. They are typically restrained, but whether they are prosecuted depends on the widely varying judgment of prosecutors around the country.

"If you get out of your seat and walk to the front of a plane and talk about bombs, you get what you deserve," said Sales, the law professor.

On the other hand, Sales adds, "There are other sanctions than throwing the book at a person who has mental health issues."

The costs of a conviction can be enormous. In Tamera Freeman's case, it cost her custody of her children.

The confrontation on the Frontier Airlines flight to Denver was particularly harsh, recalled Amy Fleming, the flight attendant who told Freeman to stop spanking her children. In a recent interview, Fleming called Freeman the most unruly passenger she had seen in 11 years on the job.

"Absolutely she deserved a felony conviction," she said.

But at least one passenger, John Carlson, a defense attorney who was seated near Freeman, said there was no threat. "There was a nasty, loud exchange," Carlson said. Then Freeman "capitulated and offered no resistance. My sympathy shifted to her."

A spokeswoman for Frontier said the airline has provided more training for flight attendants since 2001, including classes on "ways to calm a situation before it reaches a boiling point or physical confrontation."

After three months in jail, Freeman agreed to plead guilty in exchange for being released on probation. A court-appointed attorney told her that a plea deal would be the fastest way to see her children, who had been taken back to Hawaii and put into foster care.

Her probation required her to stay in Oklahoma City, where she grew up, and prohibited her from flying. Meanwhile, legal proceedings in Hawaii have begun to allow the children's foster parents to adopt them.

Freeman has been denied permission to attend custody hearings in Maui over the last six months, court records show.

"I have cried. I have cried for my children every day," Freeman said. "I feel the system is failing me."

Monday, January 19, 2009

As the new U.S. administration prepares to take office amid grave financial and international crises, it may seem counterintuitive to argue that the very unsettled nature of the international system generates a unique opportunity for creative diplomacy.

That opportunity involves a seeming contradiction. On one level, the financial collapse represents a major blow to the standing of the United States. While American political judgments have often proved controversial, the American prescription for a world financial order has generally been unchallenged. Now disillusionment with the United States' management of it is widespread.

At the same time, the magnitude of the debacle makes it impossible for the rest of the world to shelter any longer behind American predominance or American failings.

Every country will have to reassess its own contribution to the prevailing crisis. Each will seek to make itself independent, to the greatest possible degree, of the conditions that produced the collapse; at the same time, each will be obliged to face the reality that its dilemmas can be mastered only by common action.

Even the most affluent countries will confront shrinking resources. Each will have to redefine its national priorities. An international order will emerge if a system of compatible priorities comes into being. It will fragment disastrously if the various priorities cannot be reconciled.

The nadir of the existing international financial system coincides with simultaneous political crises around the globe. Never have so many transformations occurred at the same time in so many different parts of the world and been made globally accessible via instantaneous communication. The alternative to a new international order is chaos.

The financial and political crises are, in fact, closely related partly because, during the period of economic exuberance, a gap had opened up between the economic and the political organization of the world.

The economic world has been globalized. Its institutions have a global reach and have operated by maxims that assumed a self-regulating global market.

The financial collapse exposed the mirage. It made evident the absence of global institutions to cushion the shock and to reverse the trend. Inevitably, when the affected publics turned to their national political institutions, these were driven principally by domestic politics, not considerations of world order.

Every major country has attempted to solve its immediate problems essentially on its own and to defer common action to a later, less crisis-driven point. So-called rescue packages have emerged on a piecemeal national basis, generally by substituting seemingly unlimited governmental credit for the domestic credit that produced the debacle in the first place - so far without more than stemming incipient panic.

International order will not come about either in the political or economic field until there emerge general rules toward which countries can orient themselves.

In the end, the political and economic systems can be harmonized in only one of two ways: by creating an international political regulatory system with the same reach as that of the economic world; or by shrinking the economic units to a size manageable by existing political structures, which is likely to lead to a new mercantilism, perhaps of regional units.

A new Bretton Woods-kind of global agreement is by far the preferable outcome. America's role in this enterprise will be decisive. Paradoxically, American influence will be great in proportion to the modesty in our conduct; we need to modify the righteousness that has characterized too many American attitudes, especially since the collapse of the Soviet Union.

That seminal event and the subsequent period of nearly uninterrupted global growth induced too many to equate world order with the acceptance of American designs, including our domestic preferences.

The result was a certain inherent unilateralism - the standard complaint of European critics - or else an insistent kind of consultation by which nations were invited to prove their fitness to enter the international system by conforming to American prescriptions.

Not since the inauguration of President John F. Kennedy half a century ago has a new administration come into office with such a reservoir of expectations. It is unprecedented that all the principal actors on the world stage are avowing their desire to undertake the transformations imposed on them by the world crisis in collaboration with the United States.

The extraordinary impact of the president-elect on the imagination of humanity is an important element in shaping a new world order. But it defines an opportunity, not a policy.

The ultimate challenge is to shape the common concern of most countries and all major ones regarding the economic crisis, together with a common fear of jihadist terrorism, into a common strategy reinforced by the realization that the new issues like proliferation, energy and climate change permit no national or regional solution.

The new administration could make no worse mistake than to rest on its initial popularity. The cooperative mood of the moment needs to be channeled into a grand strategy going beyond the controversies of the recent past.

The charge of American unilateralism has some basis in fact; it also has become an alibi for a key European difference with America: that the United States still conducts itself as a national state capable of asking its people for sacrifices for the sake of the future, while Europe, suspended between abandoning its national framework and a yet-to-be-reached political substitute, finds it much harder to defer present benefits.

Hence its concentration on soft power. Most Atlantic controversies have been substantive and only marginally procedural; there would have been conflict no matter how intense the consultation. The Atlantic partnership will depend much more on common policies than agreed procedures.

The role of China in a new world order is equally crucial. A relationship that started on both sides as essentially a strategic design to constrain a common adversary has evolved over the decades into a pillar of the international system.

China made possible the American consumption splurge by buying American debt; America helped the modernization and reform of the Chinese economy by opening its markets to Chinese goods.

Both sides overestimated the durability of this arrangement. But while it lasted, it sustained unprecedented global growth. It mitigated as well the concerns over China's role once China emerged in full force as a fellow superpower. A consensus had developed according to which adversarial relations between these pillars of the international system would destroy much that had been achieved and benefit no one. That conviction needs to be preserved and reinforced.

Each side of the Pacific needs the cooperation of the other in addressing the consequences of the financial crisis. Now that the global financial collapse has devastated Chinese export markets, China is emphasizing infrastructure development and domestic consumption.

It will not be easy to shift gears rapidly, and the Chinese growth rate may fall temporarily below the 7.5 percent that Chinese experts have always defined as the line that challenges political stability. America needs Chinese cooperation to address its current account imbalance and to prevent its exploding deficits from sparking a devastating inflation.

What kind of global economic order arises will depend importantly on how China and America deal with each other over the next few years. A frustrated China may take another look at an exclusive regional Asian structure, for which the nucleus already exists in the Asean-plus-three concept.

At the same time, if protectionism grows in America or if China comes to be seen as a long-term adversary, a self-fulfilling prophecy may blight the prospects of global order.

Such a return to mercantilism and 19th-century diplomacy would divide the world into competing regional units with dangerous long-term consequences.

The Sino-American relationship needs to be taken to a new level. The current crisis can be overcome only by developing a sense of common purpose. Such issues as proliferation of weapons of mass destruction, energy and the environment demand strengthened political ties between China and the United States.

This generation of leaders has the opportunity to shape trans-Pacific relations into a design for a common destiny, much as was done with trans-Atlantic relations in the immediate postwar period - except that the challenges now are more political and economic than military.

Such a vision must embrace as well such countries as Japan, Korea, India, Indonesia, Australia and New Zealand, whether as part of trans-Pacific structures or, in regional arrangements, dealing with special subjects as energy, proliferation and the environment.

The complexity of the emerging world requires from America a more historical approach than the insistence that every problem has a final solution expressible in programs with specific time limits not infrequently geared to our political process.

We must learn to operate within the attainable and be prepared to pursue ultimate ends by the accumulation of nuance.

An international order can be permanent only if its participants have a share not only in building but also in securing it. In this manner, America and its potential partners have a unique opportunity to transform a moment of crisis into a vision of hope.

Henry A. Kissinger served as national security adviser and as secretary of state in the administrations of Presidents Richard Nixon and Gerald Ford. Distributed by Tribune Media Services.